MEDIATION MYTHS - CAN THE JUDGE MAKE YOU GO & OTHER THINGS YOU NEED TO KNOW

By Jennifer Paine of Pinnacle Family Law on Monday, May 15, 2017.

Maybe your attorney suggested mediation.

Maybe your trial judge ordered you and your spouse to mediate. Maybe your friends, coworkers, relatives, the guys who've gone down "the terrible trial path (read: expensive and ego-busting)" before you have told you that mediation is definitely the way to go.

Or maybe you've done your reading on mediation and think it will be a reasonable alternative to, or attempt for a resolution before, a domestic relations trial.

If so, then you've probably heard these myths:

Mediation is Mandatory

This may be the spoken rule, but there are always exceptions. It is common for judges and mediation-prone attorneys (who avoid trial, even if that mean cramming a settlement down a client's throat) to pass mediation off as "mandatory." "Hey, you've got to do this," or "we have a standing order for this," or "This judge expects us to mediate," or "Everyone mediates in this county," etc., are the reasons you will hear. Not so - at least, not for all cases.

For some cases in many counties, mediation may be mandatory. These are usually cases in which one party is or both parties are unrepresented and cannot conduct a trial, cases in which the parties have attorneys and there are several issues that need airing (judges do not like to weed-out the emotional issues from the legal issues) and narrowing and cases in which the parties have attorneys and there are only a few issues, which makes little economic sense for trial. That is, most cases.

However, for cases involving domestic violence, from either party to the other or a child, unequal bargaining power or an absconded party, who has nothing to do with the case, mediation is usually not required. For cases involving domestic violence or unequal bargaining power, the victim-spouse's safety is more important than reaching a deal. For cases involving an absent party, one who is either physically not present or who refuses to cooperate, mediation is a waste of time and money.

That may be commonsense, but what may not be commonsense is whether your case falls into an exception. If there is a history of domestic violence in your relationship, if you do not feel that your wife will cooperate (maybe she will give a "take it or leave it" offer and sit at mediation for three hours, draining your time and racking-up your attorney fee bill), then you should discuss with your attorney whether you can opt out of mediation. This may require an order from your judge, so be sure to act immediately.

Mediation is Usually Expensive

There are expensive mediators, true, but many counties and private organizations offer free or low-cost mediation services, too. The trick is knowing where to locate them.

You should start with a county list of mediators. Most courthouse clerks keep a list of approved mediators, who sometimes meet licensing and training requirements, depending on the county, with office locations, hours and hourly rates. Do not shy-away from the more expensive mediators, as they may have a success rate better than the cheaper ones. Why spend $200/hour for four hours with a cheap mediator to get the same result you can get in one hour with a mediator who charges $350/hour? You should, of course, pay particular attention to attorneys who are members of a domestic relations association and/or who practice family law.

Ask your attorney for recommendations. Who has the attorney used for other cases like yours? What was the attorney's success-rate with that mediator? What was the average cost and the cost for cases similar to yours? You can ask these questions of friends, co-workers, etc., who have been divorced, too, but always take their comments with a "grain of salt" - if there were unhappy with the fact of divorce altogether, that will reflect in their appraisal of the mediator.

Or seek private organization mediators. The Association of Attorney-Mediators Online Database is a helpful place to begin your search. The AAM is a non-profit trade association of over 300 attorney-mediators throughout the country who must meet stringent licensing and ethics qualifications. You can search for mediators by case type and location, number of mediations, and even language, at www.attorney-mediators.org.

Mediation is Just Deal-Making

Yes, mediation is about make a deal - a settlement agreement. However, mediation comes in several forms, and not all of them are about making a deal.

For evaluative mediation, the mediator will evaluate the strengths and weaknesses of your and your wife's respective arguments and make a recommendation based on that mediator's appraisal of the case and experience with the judge assigned to your case. The mediator may issue a written recommendation, and there may be penalties (such as attorney fee) for not accepting the evaluation if a trial results in a less favorable outcome, but, usually, the mediator's job end with telling you "how it will probably be at trial." The point is not to strike a deal, necessarily, but to determine whether you have a shot at winning in trial, then making a decision to settle based on the likelihood that you will or will not win that argument.

For facilitative mediation, the mediator's job is to help you and your wife reach an agreement regardless of what a trial judge might do. The mediator will help you overcome the pent-up emotions in a divorce and focus on the practical aspects - particularly settling your case before you spend your kid's college fund on an attorney.

For arbitration-mediation, the mediator will make a decision - which could be binding - if you and your wife cannot reach an agreement. Although some parties and attorneys are fans of arbitration-mediation, it is not advisable when there are children or significant issues (that have not yet been thoroughly investigated) in your case. Matters involving children are almost always subject to the judge's approval, and you could allow the arbitrator-mediator to make a decision for your property and debts without having all of the information, which a trial judge would, to make that decision.

Moreover, while your statements to a mediator are confidential and cannot be used against you in trial (meaning, the trial judge will probably not hear you say, "She's just after my money."), what you say to the arbitrator-mediator, sitting as a mediator, can be used against you as he or she sits as an arbitrator.

There are some good things to engaging in deal-making, however. For most counties, what you say and the documents you produce during mediator are confidential and cannot be used against you to prove liability or a reasonable outcome to your case later. Therefore, you can be free to suggest that you take on a credit card bill to prompt your wife to settle, even if you would argue that she should pay one-half of it if your case is tried. Be sure to talk to your attorney about how the confidentiality rules work in your county, and know what you can and cannot say before mediation.

If mediation is a "must" or, more likely a "to do," in your case, now you are a more informed. You should, as always, discuss your case progress with your attorney. You may find that trial is, and it often is, more efficient than a day of mediation. But you may also find that, if your case fits the mediation criteria, you can find an affordable mediator and you define your goals for mediation, a day of mediation will settle your case or allow you to evaluate where your case stands before trial.

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